JUDGMENT 1. - This appeal is directed against the judgment and decree dated 24.05.2010 passed by District Judge, Pali, whereby, the appeal filed by the appellant-plaintiff against judgment and decree dated 04.12.2007 passed by Additional Civil Judge (Junior Division) No. 1, Pali has been dismissed. 2. The facts in brief may be noticed thus : the appellant-plaintiff filed a suit for declaration and permanent injunction with the averments that ancestral property of plaintiff and defendant No. 3 was situated at village Sonai Manji, wherein, the plaintiff, defendant No. 3 and other ancestors were living for last 100-150 years; at the back of the said premises on the western side a 6 ft. broad lane regarding the entire width of the plot was situated; after the said lane, land of defendant Nos. 1 and 2 was situated; a house built about 40-50 years back was situated on the said land of defendant Nos. 1 and 2; the disputed 6 ft. lane was marked as ABCD in the enclosed map; it was claimed that the present construction was existing for last 25 years, wherein, on the ground floor 6 ventilators and 6 windows on the first floor were situated and the rain water used to fall in the said lane and the said lane was being used for the purpose of maintenance of the wall; the plaintiff was also getting light and air from the said lane and, therefore, he has right of easement; it was claimed that the defendant Nos. 1 and 2 was seeking to encroach on the said lane and was intending to raise construction and, therefore, on 03.10.2000 he started digging for foundation and when despite plaintiff's request, they did not accede to the same, a complaint was made in the police station; ultimately it was prayed that the land in question be declared as lane and that the plaintiff has the right to use the said land for light and air and to use the same for repair and maintenance of the wall and for outlet of the rain water and seeking a restraint against the defendants from encroaching, raising construction and possessing the land in question. 3. A written statement was filed by defendant Nos. 1 and 2 and the averments contained in the plaint were denied; the existence of lane ad measuring 6 ft. 3. A written statement was filed by defendant Nos. 1 and 2 and the averments contained in the plaint were denied; the existence of lane ad measuring 6 ft. was denied; the averments regarding the construction raised by the plaintiff and defendant No. 3 about 25 years back and having ventilators and windows along with right of rain water falling in the lane were all denied; when the plaintiff wanted to open the windows, a report was made to the police, wherein, the plaintiff and defendant No. 3 claimed the lane to be public lane and, therefore, there is no question of any easement; the defendants have raised construction after seeking permission from the Gram Panchayat. 4. The trial court framed seven issues and after evidence was led by the parties, it was came to the conclusion that from the Commissioner report, which was obtained at the instance of plaintiff himself, no lane at the back of plaintiff's house has been indicated and the land has been indicated as Government land and, therefore, there was no question of existence of any lane. Further, the plaintiff failed to point out as to from where the land starts and where it ends and was also unable to give the length and width of the said lane and came to the conclusion that no lane exists as claimed by the plaintiff. Regarding the easement, the trial court came to the conclusion that the plaintiff has failed to prove that the construction was raised 25 years back and in fact the same was raised about 6-7 years back only and, therefore, there was no question of claiming any easement. In view of the said findings, the trial court dismissed the suit. 5. Feeling aggrieved, the appellant-plaintiff filed first appeal before the District Judge, Pali, who by the impugned judgment came to the same conclusion that the plaintiff has failed to prove existence of lane and any right of easement and, consequently, dismissed the appeal. 6. It is submitted by learned counsel for the appellant that both the courts below fell in error in coming to the conclusion that no lane exists at the site and have misconstrued the Commissioner Report, wherein, it was indicated that Government land was situated, regarding which, the plaintiff had filed the suit and, therefore, the findings of both the courts below stand vitiated. It was further submitted that admittedly the plaintiff has got his ventilators and windows over looking the said lane and, therefore, he has easementary right regarding light and air and on that count also the judgments impugned deserve to be interfered with. 7. I have heard learned counsel for the appellant. 8. A bare look at the averments made in the plaint as contained in the judgment of the trial court would reveal that the plaintiff did not specify the nature of the so called lane as to whether the same form part of his ownership or that of respondent Nos. 1 and 2. The trial court after the evidence was led by the parties came to a specific conclusion that the plaintiff failed to point out existence of any lane. The said finding was based on the ignorance of the plaintiff regarding the so called lane itself. The observations of the Commissioner that the so called lane was Government land appears to be beyond the scope of his brief as it was not even the case of the plaintiff that the so called lane was a Government land, as such, no reliance can be placed on such observations, which were beyond the record, pleadings and evidence led by the parties as it is well settled that report of the Commissioner cannot be utilised for the purpose of creating evidence. 9. So far as the right based on easement is concerned, when both the courts have come to a conclusion based on the evidence available on record that the construction was raised by the plaintiff about 6-7 years before filing the suit, there is no question of any right of easement having occurred to the plaintiff. 10. The findings recorded by the courts below on both the issues are essentially findings of fact and no perversity could be pointed out by learned counsel for the appellant. 11. No substantial question of law is involved in the present appeal. Consequently, the same is dismissed. The stay application is also dismissed.Appeal dismissed. *******